| Margarito Gutierrez v. David Chavez, et al. | CASE NO. 114CV263152 | |
| DATE: 11 September 2014 | TIME: 9:00 | LINE NUMBER: 13 |
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Wednesday 10 September 2014. Please specify the issue to be contested when calling the Court and counsel.
On 11 September 2014, the motions of Defendant David Chavez and Esparanza Chavez dba Chavez Market (“Defendant”) to
1) Compel Responses to Request for Production of Documents[1], Set One, and for Monetary Sanctions
2) An Order Deeming Admitted Request for Admissions, Set One, and for Monetary Sanctions
3) Compel Responses to Form and Special Interrogatories, Set One, and for Monetary Sanctions
was argued and submitted. [2]
Plaintiff Margarito Gutierrez (“Plaintiffs”) filed formal opposition to the motions to an Order of Deeming Admitted Request for Admissions and Compel Responses to Form and Special Interrogatories.[3]
I. Statement of Facts
The lawsuit arises out of a slip and fall that occurred in Defendants’ grocery store. Plaintiff filed suit on 2 April 2014.
II. Discovery Dispute
On 21 May 2014, Defendants’ counsel served request for Production of Documents, set one (“RPD”), an Ordering Deeming Admitted Request for Admissions, set one (“RFA”), Form Interrogatories, set one (“FI”), and Special Interrogatories, set one (“SI”) on Plaintiff’s counsel. The discovery requests were due on or before 25 June 2014.
In mid June 2014, Plaintiff’s counsel sent the discovery responses to Plaintiff. However, Plaintiff failed to provide any responses by the deadline. Plaintiff’s counsel did not request an extension nor did he furnish any reason why no responses were provided.
On 10 July 2014, Defendants’ counsel left a message for Plaintiff’s counsel regarding the discovery requests. Defendants’ counsel did not receive any return call.
On 15 July 2014, Defendants’ counsel sent to Plaintiff’s counsel a meet and confer letter regarding the failure to responds to the discovery requests.
On 14 August 2014, Defendants’ counsel filed the motions to compel discovery requests since he has not received any responses from Plaintiff.
By mid August 2014, Plaintiff’s counsel contacted Defendants’ counsel regarding the discovery requests after receiving his message. Plaintiff’s counsel explained the difficulties in obtaining the responses to the requests. In addition, Plaintiff’s counsel wrote and mailed a letter explaining to the difficulties dated 20 August 2014. Plaintiff’s counsel stated that he did not know that Defendants’ counsel has already filed motions to compel for all the discovery requests.
On 26 August 2014, Plaintiff’s counsel filed an opposition paper to the motions.
On 4 September 2014, Defendants’ counsel filed a reply brief to the opposition.
III. Analysis
A. Motion to Compel Responses to Discovery
To prevail on its motion, a party needs to show that the discovery requests were properly served, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.)
If a party to whom demands for production, requests for admissions or interrogatories are directed fails to serve a timely response, the party propounding the interrogatories may move for an order compelling responses. (See CCP §§ 2031.300(b) (demand for production); 2030.290(b) (Interrogatories).) The party who fails to serve a timely response waives any right to object to the interrogatories or demands, including ones based on privilege or on the protection of work product. (See CCP §§ 2031.300(a) (response to demand for production); 2030.290(a) (interrogatories).)
To establish that a party did not serve a timely response to interrogatories or demands, the moving party must show that the responding party was properly served with the discovery requests, that the deadline to respond has passed, and that the responding party did not timely respond to the discovery requests. CCP §§ 2030.080(a); 2031.040; 2031.260(a); 2031.300.)
Moreover, if a party to whom interrogatories, document production requests, and request for admissions are directed fails to serve timely responses, that party waives any right to object to the requests, including ones based on privilege or the protection of attorney work product. (CCP §§ 2030.290(a), 2031.300(a).)
There is no limitation period or meet and confer requirement for bringing a motion to compel an initial response to interrogatories. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 410-411; Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.) The moving party need only show that the discovery was properly propounded and a timely response was not served. (Id.)
- Form Interrogatories, Set One, and Special Interrogatories, Set One
Defendant’s counsel provided proof of service for the first set of form interrogatories and special interrogatories. The deadline for Plaintiffs to respond has lapsed. However, Plaintiff, in his opposition paper to this motion, submitted responses to the form and special interrogatories.
Nonetheless, Plaintiff’s counsel verified responses to Form and Special Interrogatories were not code compliant. Under CCP § 2030.210(a) “the party to whom interrogatories have been propounded shall respond in writing under Oath separately each interrogatory.” It does not purport that an attorney should response to the interrogatories on his client behalf without the party to whom the interrogatories’ knowledge. Hence, Plaintiff’s counsel responses to the interrogatories should not be considered responses since it is not code compliant.
Neither the attorney nor his staff should verify the response, even if it includes objections. (Weil, et. al, Cal. Practice Guide Civil Procedure Before Trial (2009) [8:1112], pp. 8F-54-55.)
Furthermore, CCP § 2030.250(a) requires the party to “sign the responses under oath, unless the response contains only objections. If it contain an objection, the attorney must also sign the response; and if it consists entirely of objections, only the attorney’s signature is required.” (See also Blue Ridge Ins. Co. v. Sup. Ct., (1988) 202 CA3d 399, 344.) Since the attorney is not required to verify, the attorney should not put himself in the awkward situation of verifying a paper when lacking first hand knowledge of the facts underlying the paper’s content.
Accordingly, Defendant’s Motion to Compel discovery responses to set one of Form Interrogatories, Special Interrogatories is GRANTED. Plaintiff is ordered to provide Defendant’s counsel discovery responses without objections within 20 calendar days of the date of the filing of this Order.
b. Request for Production
Defendant has provided proof of service for Defendant’s Request for Production of Documents, Set One to Plaintiffs. The deadline for Plaintiffs to respond has lapsed and Plaintiffs has not timely responded to Defendant’s request.
Accordingly, Defendant’s motion to compel responses to Request for Production, Set One to Plaintiffs is GRANTED. Plaintiffs shall respond to Defendant’s Request for Production, Set One, without objections within 20 calendar days.
c. Motion to Deem Matters Admitted
This motion is not code compliant. Defendant cited CCP §§ 2031.010, 2031.320, 2031.320(a). However, this is not the proper citation for this motion.
The party to whom requests for admission have been propounded is required to serve a response within 30 days, or on any later date to which the parties have agreed. (CCP, §§ 2033.250, 2033.260.) An additional 5 calendar days are added if the discovery is served by mail within California. (CCP, § 1013 (a).)
If the party to whom requests for admissions are directed fails to serve a timely response, that party waives any objection to the requests. (CCP § 2033.280(a).) In addition, the propounding party may move for an order that the truth of any matters specified in those requests be deemed admitted. (CCP, § 2033.280 (b).) The court shall make this order unless it finds that, prior to the hearing on the motion, the responding party served a proposed response that is substantially code-compliant. (CCP, § 2033.280 (c); see also Tobin v. Oris (1992) 3 Cal.App.4th 973, 983.)
There is no limitation period or meet and confer requirement for bringing a motion to deem matters admitted. (See Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, fn. 4; Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1584.) The moving party need only show that the discovery was properly propounded and a timely response was not served. (Id.)
However, Plaintiff never objected to this defect. This Court places substance over form and realizes that, in light of the policy in favor of discovery, the expeditious resolution of this matter would be best effectuated by compelling responses to this discovery request. Accordingly, Defendant’s Motion for an Order Deeming Admitted Request for Admission, set one, is GRANTED.
B. Monetary Sanctions
Plaintiff makes a request for monetary sanctions for each motion. The request is not code-compliant.
Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” See Rule of Court 2.30.
- Sanctions for Motion to Compel Production of Documents
Since Defendants did not file opposition to Motion to Compel Production of Documents, the Defendant has not “unsuccessfully opposed” the Plaintiff’s motions. Code Civ. Proc. §2031.300(c). Therefore, the reliance on §2031.300 for monetary sanctions is inapplicable. The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a)[4], where the court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.
The Court suggests the proper procedure would be to put the following language in the notice of the motion:
“If you wish to oppose the relief requested in this motion, you must timely file a written reply in compliance with all Court rules. If you fail to do so, the court may treat your failure to respond as a waiver of your right to oppose this motion and may grant the relief requested pursuant to Rule of Court 3.1348(a) which states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”
Accordingly, monetary sanctions for failure to comply with the production of document are DENIED.
- Sanctions for Motion to Compel Reponses to FI and SI
In support of the request for sanctions, Defendants’ counsel cites CCP § 2023.030 where it provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” As such, section 2023.030 does not provide an independent basis for an award of sanctions. In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue. Defendants’ counsel also cites 2023.030(a), which provides if the motion to compel is granted, the court may order the party to whom the interrogatories were directed to pay the propounding party’s reasonable expenses.
The California Code of Civil Procedure states that the Court shall impose monetary sanctions in many different situations. See CCP § 2030.290(c) (Imposing monetary sanctions for a motion to compel answers to interrogatories).
In determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49). Here, Defendants’ counsel did not list his reasonable hourly fee involved in preparing this motion. Thus, the Court cannot determine the appropriate monetary sanctions to be awarded.
Therefore, monetary sanctions for Motion to Compel Responses to FI and SI are DENIED.
- Sanctions for Motion to Deem Matters Admitted
Here, Defendants’ counsel did not declare his reasonable hourly fee involved in preparing this motion. Thus, the Court cannot determine the appropriate monetary sanctions to be awarded.
Therefore, monetary sanctions for motion to deem Matters Admitted are DENIED.
IV. Order
Since the request is not supported by the appropriate authorities in the memorandum of points and authorities, Motion for an Order Deeming Admitted Request for Admission, set one, is DENIED without prejudice.
Defendant’s motion to compel responses to Request for Production, Set One to Plaintiffs is GRANTED. Plaintiffs shall respond to Defendant’s Request for Production, Set One, without objections within 20 calendar days.
Defendant’s Motion to Compel discovery responses to set one of Form Interrogatories, Special Interrogatories is GRANTED. Plaintiff is ordered to provide Defendants’ counsel discovery responses without objections within 20 calendar days of the date of the filing of this Order.
Monetary sanctions for all motions for discovery requests are DENIED.
| ____________________________
DATED: |
_________________________________________________
HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
[1] All Parties are reminded that the Notice and Memorandum of Points and Authorities’ headings should be consistence. The Court assumes that Defendant is requesting a Motion to Compel not a Motion to Compel Further Responses.
[2] Rule of Court 3.1345(d) states: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.”
[3] All parties are reminded that all papers must comply with Rule of Court 3.1110(f). Using tabs to separate exhibits is very helpful in saving the Court time and effort.
[4] Rule 3.1348 renumbered effective January 1, 2009; adopted as rule 341 effective July 1, 2001; previously renumbered as rule 3.1030 effective January 1, 2007.
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